THE ATTORSEY GENERAL 

OF TEXAS 

August 10, 1987 

Bonorable Rolando J. Menchaca Opinion No. JM-765 

Maverick County Attorney 

P. 0. Box 3041 Re: Whether a sheriff may prohibit 

Eagle Pass, Texas 78853 county peace officers from carrying 

weapons into commercial establishments that serve alcoholic beverages 

Dear Mr. Menchaca: 

You inform us that the county sheriff has received complaints 

that armed law enforcement officers from various political 

subdivisions in the county have been observed patronizing bars or 

night clubs, drinking alcoholic beverages, and socializing. After an 

investigation, it was determined that, on several occasions, the peace 

officers were not acting as security guards or investigating criminal 

offenses; they were present only as patrons. Section 46.02 of the 

Penal Code, which makes unlawful the carrying of weapons, specifically 

provides in subsection (c): "An offense under this section is~ a 

felony of the third degree if it occurs on any premises licensed or 

issued a permit by the state for the sale or service of alcoholic 

beverages." You correctly point out that section 46.03(a)(6) of the 

Penal Code specifically provides that section 46.02 of the Penal Code 

is inapplicable to peace officers. See Attorney General Opinion 

m-613 (1986). Accordingly, you ask: - 

Can our local sheriff issue a directive to any and 

all peace officers in our county to the effect 

that, while acting as patrons at a drinking 

establishment, etc., peace officers should leave 

their weapons elsewhere? If this cannot be done, 

is there anything that our sheriff can do to 

address this particular problem? 

We understand you to ask whether the county sheriff has the authority 

to direct the activities of non-county peace officers, as well as 

county peace officers. Logically, your question could arise in 

connection both with regard to "on-duty" conduct or activities, as 

well as "off-duty" conduct. We will address each situation. 

Of course, a county sheriff may direct the activities of peace 

officers in his employ during their "on-duty" time of employment. - See 

p. 3587 
Honorable Roland0 J. Menchaca - Page 2 (JM-765) 

Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, 

writ dism'd). We conclude, however, that the county sheriff is 

without authority to make such a policy applicable to peace officers 

who are employees of other political subdivisions in the county. 

The authority of a county sheriff to direct the "off-duty" activities 

of peace officers in his employ is more limited, however, to 

restrictions that are reasonably connected to the proper execution of 

his law enforcement responsibilities. You do not ask about the 

reasonableness of any specific policy. Whether any specific policy is 

reasonable is a question of fact that we cannot resolve in the opinion 

process. We cannot determine the reasonableness of any specific 

policy that prohibits county peace officers, while armed, from 

frequenting during their "off-duty" hours 

sell or serve alcoholic beverages. 

establishments licensed to 

County sheriffs generally exercise supervisory control over 

employees in the county sheriff's office. See, e.g., Attorney General 

Opinion H-1190, (1978). County sheriffs are authorized by article 

6869, V.T.C.S.,' to appoint deputies "to continue in office during the 

pleasure of the sheriff, who shall have power and authority to perform 

all the acts and duties of their principles." See generally Heye v. 

Moody, 4 S.W. 242 (Tex. 1887); Murray v. Barris, 112 S.W.Zd 1091 (Tex. 

Civ. App. - Amarillo 1938, writ dism'd). Article 6870, V.T.C.S., 

provides that sheriffs shall be responsible for the official acts of 

their deputies; they are not responsible for unofficial and 

unauthorized acts of deputies. Workman v. Freeman, 279 S.W.Zd 486 

(Tex. Civ. App. Amarillo 1955). aff'd 289 S.W.2d 910 (Tex. 1956); 

Taylor v. Stanford, 229 S.W.2d 427 (Tex. Civ. App. - Galveston 1950, 

no writ). A county sheriff has the authority to deploy his personnel 

in any manner that he deems appropriate. Weber v. City of Sachse, 591 

S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd). While the 

county sheriff may exercise supervisory control over employees of his 

office, he exercises no supervisory control over peace officers 

employed by other political subdivisions in the county. 

While the county sheriff may not exercise supervisory control 

over peace officers employed by other political subdivisions, 

regardless of whether control is sought to be exercised over "on-duty" 

time or "off-duty" time, we conclude that he may impose reasonable 

limitations on the "off-duty" behavior of his own deputies. 

Generally, a public employer may not discharge a public employee 

at-will unless the cause for the discharge is reasonably related to 

1. Art. 6869, V.T.C.S., has been repealed and replaced, 

effective September 1, 1987, see now chapter 86, of the Government 

Code. - See Acts 1987, 70th Leg., ch. 149, §§I, 49. 

p. 3588 
Eonorable Roland0 J. Menchaca - Page 3 (JM-765) 

employment. See, e.g., Annots., 35 A.L.R. 4th 691 (1985); 33 A.L.R. 

4th 120 (1985). Given the fact that law enforcement officers can be 

thought to be "on-duty" at all times insofar as a peace officer is 

required to respond to any breach of the peace that occurs within his 

view even if he is no longer working his assigned "shift," we conclude 

that a county sheriff may exercise reasonable "off-duty" control of 

his deputies. 

In Attorney General Opinion JM-613 (1986). we were asked whether 

a Texas peace officer commits a crime and is subject to prosecution 

for a misdemeanor or felony if he carries a handgun either (1) while 

he is "off-duty" (i.e., not then actually carrying out duties assigned 

to him by his department), or (2) while he is outside the limits of 

the territory over which his department has law enforcement 

jurisdiction. We concluded that a peace officer in Texas, wherever in 

the state he might be and whether engaged in the actual discharge of 

his duties, is ~immune from prosecution under section 46.02 of the 

Penal Code for unlawfully carrying a handgun. One of the primary 

reasons that the opinion so held is that Texas courts have 

consistently concluded that a peace officer, at least when he is 

within his normal jurisdiction, remains a peace officer, twenty-four 

hours a day and possesses the full powers of a peace officer in the 

presence of criminal activity.. See Wood v. State, 486 S.W.2d 771 

(Tex. Grim. App. 1972); Sims v. State, 319 S.W.2d 717 (Tex. Grim. 

App. 1958). The Code of Criminal Procedure, article 2.13, makes it 

the duty of every peace officer to preserve the peace within his 

jurisdiction at all times and not merely during his "on-duty" hours or 

"shift." See Attorney General Opinion JM-140 (1984). Similarly, the 

cases of Preston v. State, 700 S.W.2d 227 (Tex. Grim. App. 1985) and 

Christopher v. State, 639 S.W.2d 932 (Tex. Grim. App. 1982), leave no 

doubt that every Texas peace officer remains a peace officer even 

while outside the territorial limits of his normal jurisdiction, 

although his power to act may be more limited outside these boundaries 

than within them. 

Because a peace officer employed by the county may be called upon 

to exercise his duty as a peace officer even when he is not working 

his regular shift, we conclude that a county sheriff may exercise 

reasonable control over the "off-duty" conduct or behavior of his law 

enforcement employees, so long as such direction or control is 

reasonably related to the proper requirements of "on-duty" conduct. 

You do not ask about the reasonableness of any specific policy. Such 

a determination would require a finding of fact, which we decline to 

make in the opinion process. 

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Eonorable Roland0 J. Menchaca - Page 4 (JM-765) 

SUMMARY 

A sheriff is ordinarily without authority to 

direct the activities, whether "on-duty" or 

"off-duty," of peace officers who are employees of 

other political subdivisions in the county. The 

authority of a sheriff to direct the "off-duty" 

activities of peace officers in his employ is 

limited to restrictions that are reasonably 

related to proper "on-duty" employment. 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 3590